The free movement of foodstuffs within the EU is of major importance. But food legislation is only partly harmonised at EU level. Currently, national laws regulating the manufacture and marketing of certain categories of food are particularly numerous. These rules usually regulate the name of the food, which may only be used when the legal definition is met. However, the same name may be defined in different ways in other EU countries or even be defined in one State and not be defined at all in another one. For example, Belgium regulates the use of names such as "yoghurt", "beer" or "mayonnaise" in a different way compared to other countries. Consequently, this has prompted the question of whether a foodstuff legally manufactured in a Member State under a name may be sold under that same name in another Member State when it does not match the definition in that other Member State.
In this context, Regulation No 1169/2011 (EU) on the provision of food information to consumers (FIC Regulation) contains several rules based on the principle of mutual recognition. This principle entails the obligation for Member States to allow within their territory products legally manufactured and put into circulation in another Member State under a specific name, even if those products do not meet the legal requirements of the Member State of destination regarding the use of that name. Thus, a product bearing a name allowed in the Member State of production may in principle be commercialized as such in another Member State, even if the composition of the foodstuff does not meet the conditions prescribed in that other Member State to use that name.
Such a rule promotes the free movement of goods, but it can also handicap producers established in a country that imposes strict rules on production and denomination for certain foodstuffs. This is particularly the case in Belgium. For example, a former royal decree of 1955 on mayonnaise prohibited Belgian producers to use the term "mayonnaise" if the product did not contain at least 80% fat and 7.5% egg yolk. Therefore, the Belgian producers regularly complained about the lack of competitiveness that this strict regulation entailed as foreign producers were not bound by such strict requirements under the law of the country where the foodstuffs were manufactured. However, in accordance with the principle of mutual recognition, a foodstuff legally manufactured in another Member State may be marketed in Belgium, while it does not meet the requirements which have to be met by the same foodstuff manufactured in Belgium.
In response to critics, the Minister of Economy declared about a year ago that most of the royal decrees regulating the names under which certain categories of foodstuffs may be commercialized would be revised in order to overcome the lack of competitiveness denounced by Belgian companies. A first step was taken in this regard through the publication of a royal decree on 26 May 2016 on mayonnaise, which repeals the previous decree of 12 April 1955. This new decree now requires a content of 70% fat (instead of 80%) and 5% egg yolk (instead of 7.5%) in order to use the name “mayonnaise”. The royal decree however wants to meet the objection that such softening of the rules would be detrimental to the quality of products. Thus, the new royal decree provides that when the mayonnaise has a fat content of at least 80% and an egg yolk content of at least 7.5% (equivalent to the levels required by the previous royal decree), the producer will now be authorized to use the name “traditional mayonnaise”.
Following on from this royal decree, a number of other royal decrees relating to other categories of food should now also be adopted after consultation with the Belgian Food Industry Federation (Fevia).
This article has also been published on www.bfso-legal.be
